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ANALYSIS OF OCTOBER 2, 2007 CAV OPINION

[Posted Tuesday, October 2, 2007] The Court of Appeals of Virginia today reverses a criminal conviction over the trial court’s refusal to play a videotaped confession to the jury. The ruling is Jones v. Commonwealth, which involves charges of aggravated malicious wounding, use of a firearm, and carrying a concealed weapon.

Nowadays, it’s becoming increasingly common for law enforcement officers to electronically record statements given by suspects and witnesses in criminal investigations. Those recordings are at least potentially evidence in the case, usually disclosed to the defense as part of the Brady materials. A dispute about the admissibility of such a recording is the issue that brings about this reversal.

Jones, shortly after shooting his neighbor during a heated discussion, gave a statement to the police, in which he described the events but added few other details. At trial, he testified to several facts that were not in the recorded statement. The prosecutor cross-examined him on the seeming inconsistency, hammering questions about why he had not given the police the additional details during the statement. Jones answered that he was “under extreme duress” at the time of the statement, so he only gave direct answers that were limited to the questions asked. (The reformed former trial lawyer in me wonders, wouldn’t it be nice if all witnesses did that at trial? But I digress.) This became a real credibility battle, as the lawyers seesawed over the issue of just why Jones had omitted certain added facts in the immediate wake of the shooting.

Just before the close of his case in chief, Jones’s lawyer asked the judge to permit him to play the tape to the jury, so it could see for itself whether Jones was under duress. The trial judge sustained the prosecution’s objection, holding that the recording was inadmissible hearsay. The jury, equipped only with Jones’s description of his demeanor during the statement, found him guilty of unlawful wounding (a lesser-included offense of the malicious wounding charge) and the concealed weapon offense.

On appeal, the Court of Appeals panel first satisfies itself that the issue was sufficiently preserved for appellate review. This discussion, which is just one page, is very useful guidance for lawyers who want to know just how much detail they need to include in order to present the matter adequately to the trial court. The Commonwealth argued that Jones’s argument was “not fully developed until his post-trial motion,” and thus came too late. (If the first time you present an argument on admissibility is post-trial, then you’re way too late.) The court finds, however, that Jones’s lawyer had given the trial court what it needed to rule intelligently on the issue: “Appellant placed sufficient information before the trial court about the nature of his request when he tried to show the videotape to the jury before he concluded his case.” Although Jones fleshed out his argument more fully after the verdict, the court finds that this argument, made during the defense case in chief and repeated before the jury began to deliberate, was enough to keep the issue alive for appellate review.

This is worth at least a small digression, to illustrate one of the more important lessons of this opinion. As I have noted in other essays, there are differing levels of detail that various appellate jurists expect from trial lawyers. Some judges at the Court of Appeals are extremely meticulous, requiring that virtually the precise argument (though probably not the same case citations; that’s getting hypertechnical) need to be presented to the trial court as to the appellate court, or else the issue is barred by Rule 5A:18. Other judges on the same court believe that if you’re somewhere in the same ballpark, then that’s good enough. (I express my gratitude to Judge Bob Humphreys for this insight.) I am not aware of any written opinion in which the court (or the Supreme Court) sets forth definitive standards for the level of specificity of such arguments, but this one at least comes close, in the sentence I quoted in the last paragraph. That is, if you give the trial judge enough information about the nature of your argument to enable the judge to decide the issue, then you should have the green light to head to a higher court.

Having found that the issue is sufficiently preserved, the court then wastes no time in finding that the trial court’s ruling was not merely wrong, but “plainly wrong.” It finds that inconsistencies in statements are inexorably tied up in credibility issues, and that the best evidence of what the defendant’s demeanor was, is the video, not merely the defendant’s description of how he felt at the time. After all, as the court notes today, judges routinely inform juries that they may consider a witness’s demeanor in evaluating whether he’s telling the truth, and in deciding how much weight to afford his story. The trial court shut out what the jury would otherwise have been able to see for itself if the statement had been made in open court.

If the jury had been able to see the video, it would have been able to evaluate for itself whether Jones exhibited any outward signs of being under stress. This had become a real focus of the trial, in which the question was whether Jones’s version of the statement was more accurate than the prosecutor’s portrayal of it. (As an aside, this is, of course, dangerous territory for prosecutors, when they put their own credibility up against that of the defendant. The risk is that the prosecutor might be venturing into the realm of testifying instead of advocating his case. But I have no reason to conclude that this prosecutor crossed that line here.) Since the jury is the ultimate judge of the facts, the appellate court rules today that it was reversible error to keep the tape away from the jury’s collective eyes.

Finally, the court rejects the trial court’s finding that the video was itself inadmissible hearsay. Hearsay, as every trial lawyer knows well, is an out-of-court statement that is offered to prove the truth of the matter asserted. Here, Jones’s lawyer wasn’t trying to use the video to prove that the statements therein were true; he was offering it for the wholly separate purpose of giving the jury the needed context in order to determine credibility. The court notes that the Commonwealth had brought up the issue of the recorded statement in the first place, so it can’t very well be heard to complain if the defendant wants to show the jury what all the fuss is about.

The case is remanded for retrial, if the Commonwealth chooses to do so. If it does, then the prosecution will be limited to the lesser-included offense, since the first jury exonerated Jones of the aggravated malicious wounding charge.